Key Regulatory Topics: Weekly Update 15 - 21 Mar 2024

Published Date
Mar 22, 2024
Of particular note this week, ESMA issued a statement in light of the entry into force on 28 March of the changes introduced by the MiFIR review. ESMA acknowledges that public guidance is necessary, notably, on the application of Article 54(3) MiFIR, which foresees the continued application of the delegated acts in place beyond 28 March until these delegated acts have been revised. The European Commission is working on an interpretive notice and ESMA undertakes to provide as much clarity as possible on the transition to the revised MiFIR, In the UK, HMT has set out its approach to designating critical third parties under the framework provided for in FSMA 2023. HMT has also provided an update on its progress in delivering the Smarter Regulatory Framework and set out the government’s approach on the next phase. Meanwhile, the FCA published its 2024-25 Business Plan, the final year of its overarching three-year strategy.

Consumer/retail

Please see the Fund Regulation section on the updated ESAs’ Q&As on the PRIIPs Regulation Key Information Document.

Please see the Other Developments section on the FCA’s Business Plan 2024-25 and the FCA’s updated approach to consumers.

ECON draft reports on proposed retail investment package

On 21 March, ECON announced that it has adopted draft reports on: (i) the proposed Regulation amending the PRIIPs Regulation as regards the modernisation of the key information document. ECON wishes to ensure comparability between PRIIP products and to develop an independent online comparison tool of the different investment options available in the EU market; and (ii) the proposed Directive amending MiFID II, the IDD, Solvency II, the UCITS Directive and AIFMD, as regards the EU retail investor protection rules. Areas of agreement relating to the proposed Directive highlighted by ECON include: (a) when providing portfolio management or insurance-based investment products, investment firms would not be allowed to accept fees, commissions or any monetary or non-monetary benefits paid or provided by any third party in relation to the provision of the service; (b) to facilitate the comparison of investment products, ESMA and EIOPA should develop common European benchmarks for products manufactured and distributed in two or more member states; and (c) financial advisors should be required to follow professional training each year, part of which should be dedicated to sustainability issues. The texts, which constitute Parliament’s negotiating mandates, will be tabled for approval during the first plenary session in April. The file will be followed up by the new Parliament after the 6-9 June European elections.

Press release

FCA Dear CEO letter: consumer lending portfolio

On 20 March, the FCA published a Dear CEO letter sent to firms in its consumer lending portfolio. The letter focuses on high-cost lending, mainstream consumer credit lending and credit unions. The FCA sets out its updated view on the key risks of harm under three focus areas: (i) promoting competition and positive change – the FCA highlights issues in relation to accessing affordable credit. Firms should consider ways they can support declined consumers; (ii) reducing and preventing serious harm – the FCA sets out issues in relation to responsible and sustainable lending, fair value, supporting consumers in financial difficulty, complaints handling, redress, financial crime controls and robust governance practices; and (iii) setting and testing higher standards – the FCA discusses its expectations in relation to the Consumer Duty. It provides an overview of upcoming policy changes including the review of the CCA, strengthening protections for consumers in financial difficulty, review of the price cap for high-cost short term credit and the introduction of product sales data returns for consumer credit agreements. The FCA expects for the letter to be discussed with the firms’ boards or amongst directors and that firms should be able to demonstrate the steps taken to address the risks set out in the letter.

Dear CEO letter

UKRN expectations for firms to minimise consumer harm from debt collection

On 18 March, the UK Regulators’ Network (UKRN) (FCA, Ofgem, Ofwat and Ofcom) set out the consumer outcomes they expect to see debt collection firms delivering for their consumers, in order to reduce harm. The outcomes include: (i) ensuring that firms send an appropriate frequency of communications to support positive customer engagement; (ii) maintaining a supportive tone for communications to encourage consumers to seek support; (iii) making free debt information advice available; and (iv) streamlining processes for debt management organisations to contact firms in pursuit of sustainable agreements for clients. The UKRN’s expectation for the financial services sector is that firms should begin from the position that customers in collections are highly likely to have characteristics of vulnerability. Firms should act in accordance with expectations under the Consumer Duty and the FCA’s Guidance for firms on the fair treatment of vulnerable customers. Where a regulator finds a regulated firm to fall short, the UKRN has outlined it will take robust action, emphasising that firms should prepare for regulators to use their respective powers to ensure expectations are met and embedded within firms’ processes.

Statement

FCA to review firms’ treatment of customers in vulnerable circumstances

On 15 March, the FCA announced that it will conduct a review of firms' treatment of vulnerable customers. The review will look at firms’ understanding of consumer needs, the skills and capability of staff, product and service design, communications and customer service, and whether these support the fair treatment of customers in vulnerable circumstances. The FCA will also assess the outcomes consumers in vulnerable circumstances receive and whether they’re as good as the outcomes of other consumers. The FCA will share its findings before the end of the year.

Press release

Fees/levies

ECB Decision on total amount of supervisory fees for 2023

On 21 March, Decision (EU) 2024/871 of the ECB on the total amount of annual supervisory fees for 2023 was published in the OJ. The total amount of annual supervisory fees for 2023 will be approximately EUR 653.7 million. The Decision will enter into force on 26 March, five days after its publication in the OJ.

Decision

Financial crime and sanctions

EU Regulation on market manipulation in wholesale energy markets

On 18 March, the Council of the EU formally adopted at first reading a Regulation amending the REMIT Regulation and the Regulation establishing the EU Agency for the Cooperation of Energy Regulators (ACER) as regards improving the EU’s protection against market manipulation on the wholesale energy market. Among other changes, the Regulation: (i) creates clearer and stricter requirements for market participants in the EU who are resident in a third country. They will have to designate a representative in a member state in which the market participants are active in the wholesale energy market. The representative must be designated by a written mandate and authorised to act on behalf of the market participant; (ii) covers new trading practices, such as algorithmic trading, and strengthens provisions on reporting and monitoring to protect consumers from market abuses; (iii) gives ACER the right to investigate cases with a cross-border dimension, where at least two member states are affected; and (iv) introduces new tools for ACER to use for conducting investigations – for example, it will be able to conduct on-site inspections and issue requests for information, and it will be authorised to take statements. After being signed by the Presidents of the EP and the Council, the Regulation will be published in the OJ and enter into force 20 days after publication.

Press release

Fund regulation

Please see the Consumer/Retail section for ECON’s announcement that it has adopted two draft reports in relation to the proposed retail investment package.

Please see the Regulatory Reform Post Brexit section for HMT’s latest update on its progress in delivering the Smarter Regulatory Framework (SRF) and approach on the next phase of the programme.

Council revised text of proposed Directive amending AIFMD and UCITS Directive

On 15 March, the Council of the EU published a revised text of the proposed Directive amending AIFMD and the UCITS Directive as regards delegation arrangements, liquidity risk management, supervisory reporting, the provision of depositary and custody services, and loan origination by AIFs. The Directive aims to enhance the integration of asset management markets in Europe and modernise the framework for key regulatory aspects. The Directive will enter into force 20 days after its publication in the OJ. Member states will have 24 months after the entry into force to transpose the rules into national legislation.

Revised text

ESAs update Q&A on PRIIPs KID

On 15 March, the ESAs updated their Q&As on the PRIIPs Regulation Key Information Document (KID). Q&As have been added in relation to issues including: (i) clarifying the term "PRIIPs open to subscription"; (ii) the difference between a “benchmark” and a “proxy” under the PRIIPs Delegated Regulation; (iii) the types of product category with regard to market risk assessments; (iv) summary risk indicators; and (v) performance scenarios.

Q&As

Markets and markets infrastructure

Please see the Regulatory Reform Post Brexit section for HMT’s latest update on its progress in delivering the Smarter Regulatory Framework (SRF) and approach on the next phase of the programme.

ESMA statement on transition to the revised MiFIR rulebook

On 21 March, ESMA issued a statement in light of the entry into force on 28 March of the changes introduced by the MiFIR review. ESMA explains that it has received numerous questions from stakeholders on the provisions applicable on the date of entry into force of the revised MiFIR. ESMA acknowledges that public guidance is necessary, notably, on the application of Article 54(3) MiFIR which foresees the continued application of the delegated acts in place beyond 28 March until these delegated acts have been revised. ESMA, in close coordination with the EC, is performing a thorough assessment of the provisions that may merit further guidance. ESMA is aware that the EC is working on an interpretive notice on the application of the transitional provision. Building on such interpretive notice, ESMA will undertake to provide as much clarity as possible on the transition to the revised MiFIR, including the impact on the ESMA IT-systems and registers and as soon as possible. However, ESMA expects that further and more detailed guidance going beyond the topics covered in the initial communication is likely to be necessary. ESMA will proceed with developing draft technical standards in a swift and transparent manner, thereby contributing to the alignment of the Commission delegated regulations with the revised MiFIR as soon as possible.

Statement

ESMA feedback to call for evidence on shortening the settlement cycle

On 21 March, ESMA published feedback to its call for evidence on shortening the settlement cycle. ESMA summarises the feedback from market participants during the consultation which focused on four areas: (i) operational impacts; (ii) potential costs and benefits; (iii) how and when a shorter settlement cycle could be achieved; and (iv) the need for a proactive approach to adapt to the transition to T+1 in other jurisdictions. Some responses warned about potential infringements due to the misalignment of the EU and North America settlement cycles, that ESMA is currently assessing. ESMA will continue assessing the responses received, including the demands for regulatory/supervisory guidance. ESMA flags several questions that remain to be further assessed and better understood. These include the impacts on securities lending and borrowing, market making, and the repo market; FX trading; cross-border activities; corporate actions standards; and, benefits resulting from margin reductions for cleared transactions. ESMA also aims to clarify the possible implications of T+1 for retail investors and smaller market players. It will draw upon lessons learnt from the North American move to T+1 as well as any further feedback received from stakeholders in the APAC region, from small and medium market participants and retail investors and their representatives. ESMA intends to deliver its final assessment to the EP and to the Council in Q3 or Q4, ahead of the 17 January 2025 deadline. Given the feedback received on T+0, with which ESMA agrees, ESMA will focus its work on shortening the settlement cycle to T+1.

Press release

Feedback

ECON report on proposed Regulation amending BMR

On 19 March, ECON published its report on the proposed Regulation amending the BMR as regards the scope of the rules for benchmarks, the use in the Union of benchmarks provided by an administrator located in a third-country, and certain reporting requirements. The report includes the text adopted by ECON, indicating where it has made amendments to the EC’s proposal. The EP is expected to vote on the report in the plenary session to be held between 22 and 25 April. ECON expects that trialogue negotiations between the EP and Council will start after the Parliamentary elections in June.

Report

Operational resilience

HMT approach to designation of critical third parties

On 21 March, HMT set out its approach to designating critical third parties (CTPs). FSMA 2023 gives HMT the ability to designate a third-party service provider to the UK financial services sector as ‘critical’, and gives the BoE, the PRA and the FCA the power to set and enforce rules, as well as the ability to gather information and conduct investigations on designated CTPs. HMT’s statements about its approach include: (i) HMT generally expects to make designations of CTPs on the basis of recommendations from the financial regulators. HMT has asked the financial regulators to prepare recommendations in such a way that supports HMT’s assessment of the prospective CTP against the statutory criteria for designation. It is also possible for HMT to designate a CTP without a recommendation from the financial regulators; (ii) HMT expects that CTPs will represent only a small number of the overall number of third party service providers to the financial services sector. The list of CTPs will change over time; (iii) designations are made by Regulations, which means every designation is public and will be visible on legislation.gov.uk; (iv) HMT anticipates that each recommendation may take around six months to process; (v) although the regime is focused on the services CTPs provide, HMT will designate CTPs at the entity rather than the service level; and (vi) for de-designation, HMT has asked the financial regulators to regularly assess the list of CTPs. The financial regulators will be able to submit recommendations to remove a CTP’s designation. HMT will generally only remove designations on the basis of these recommendations from the financial regulators.

Approach document

Payment services and payment systems

Please see our Fintech and Digital Assets Talk blog for a recent post discussing the new Regulation on instant credit transfers and the latest changes to the PSD III payments package.

Please see the Regulatory Reform Post Brexit section for HMT’s latest update on its progress in delivering the Smarter Regulatory Framework (SRF) and approach on the next phase of the programme.

Regulation on instant credit transfers in euro

On 19 March, Regulation (EU) 2024/866 amending the SEPA Migration Regulation, the Cross Border Payments Regulation, the SFD and PSD2 as regards instant credit transfers in euro, was published in the OJ. The Regulation mandates EU payment service providers (PSPs) to offer 24-hour euro-transfers within 10 seconds to their customers at no extra charge compared to standard transfers. The Regulation will enter into force on 8 April, 20 days after its publication in the OJ. Once in force, PSPs located in the eurozone will have 9 months to be ready to receive instant credit transfers in euro and 18 months to send them. PSPs located in non-eurozone Member States have a longer transition period to comply. Member States have 12 months to make changes to the PSD2 and the SFD, as transposed.

Text

Prudential regulation

Please see the Other Developments section for an announcement by the PRA that It will be launching a new website for its rulebook on 10 April.

EC Implementing Regulation amending ITS on supervisory reporting of IRRBB

On 15 March, the EC adopted a Commission Implementing Regulation amending the ITS laid down in Implementing Regulation (EU) 2021/451 as regards rules on the supervisory reporting of interest rate risk in the banking book (IRRBB), under the CRR. The ITS specify the reporting templates to provide supervisors with the data they need to monitor IRRBB and the impact on institutions caused by changes in policy rates, including the interaction of the IRRBB with the management of interest rate risks by institutions, and the identification of outliers within both the Supervisory Outlier Test (SOT) on economic value of equity, and the SOT on net interest income. The ITS include simplified templates for small and noncomplex institutions (SNCIs) and institutions other than large institutions and SNCIs to bring the data quality required for assessing IRRBB risks on a scale proportionate to institutions’ size. The content of the ITS has been streamlined and simplified to fit the purpose of the underlying regulation. The Implementing Regulation will enter into force 20 days following its publication in the OJ. It will apply from 1 September.

Implementing Regulation

Recovery and resolution

ECON draft reports on CMDI framework proposals

On 21 March, ECON announced that it has adopted draft reports on the proposals relating to the review of the EU bank crisis management and deposit insurance (CMDI) framework. The proposals include amendments to the BRRD, the SRM Regulation and the DGSD. Changes highlighted by ECON include: (i) application of the resolution framework to any bank, where it is assessed that there is public interest to do so, irrespective of its size. Tax-payer funded extraordinary financial support could be granted only to remedy a serious disturbance in the economy of a Member State of an exceptional or systemic nature and to preserve financial stability; (ii) a two-tiered approach where deposits of retail clients as well as microenterprises and SMEs benefit from a higher priority ranking over eligible deposits of large enterprises and central and regional governments; (iii) harmonisation of the DGS’ functions. The number of discretions under national law should be limited and all DGSs should be able to finance resolution measures, preventive measures and other alternative measures to the payout of depositors. On top of the coverage of 100 000 Euros per depositor and bank, MEPs want deposits resulting from certain events such as a real estate transaction to be protected in the EU (as a minimum to an amount of EUR 500 000 and as a maximum to an amount of EUR 2 500 000 for a harmonised duration of 6 months). The Plenary is expected to vote on the texts during its second session in April. The file will be followed up by the new Parliament after the 6-9 June European elections.

Press release

Amendments to Delegated Regulation on calculation of eligible liabilities and the transitional regime under BRRD

On 20 March, Commission Delegated Regulation (EU) 2024/895 amending Delegated Regulation (EU) 2015/63 as regards the calculation of eligible liabilities and the transitional regime under the BRRD, was published in the OJ. The Amending Delegated Regulation makes the following amendments to the BRRD: (i) provisions relating to MREL and the definition of eligible liabilities will be revised to reflect the amendments made by BRRD II; (ii) the period during which Member States have the possibility to allow smaller institutions to contribute to national resolution funds under a lump-sum regime will be extended until 31 December; and (iii) in the 2024 contribution period, institutions had to provide resolution authorities with the relevant information by 29 February, and the resolution authorities must notify the institutions of their decisions determining the annual contribution due by each institution by 31 May. The Amending Delegated Regulation came into force on 21 March, the day after its publication in the OJ. It applied from 21 March, with the exception of amendments relating to the transitional regime and the process for raising annual contributions, which will apply retroactively from 1 December 2023.

Amending Delegated Regulation

FSB guidance on arrangements to support operational continuity in resolution

On 18 March, the FSB updated its guidance on arrangements to support operational continuity in resolution, originally published in 2016. The guidance assists supervisory and resolution authorities and financial institutions to evaluate whether financial institutions that are subject to resolution planning requirements have appropriate arrangements to support operational continuity if the firm enters resolution. It covers legal, contractual and governance frameworks, resourcing, management information systems and financial resources. The FSB has now included a supplementary note on the digitalisation of critical shared services as an addendum. The supplementary note does not create any new guidance or requirements. Rather, it specifies, for each section of the 2016 guidance, how authorities and firms should think about the continuity of critical shared services in resolution when those services are digital.

Revised guidance

Regulatory reform post Brexit

HMT paper on next phase of the Smarter Regulatory Framework

On 21 March, HMT provided an update on its progress in delivering the Smarter Regulatory Framework (SRF) and set out the government’s approach on the next phase. HMT states that the government has identified 777 pieces of assimilated law (formally retained EU law) relating to financial services within scope of the SRF programme. As of February, the government has so far removed 44% of assimilated law relating to financial services, totalling 344 different instruments. Of these, around 140 were repealed as part of preparations for EU exit, as they were deficient or unnecessary for the UK after exit. 191 had become redundant following EU exit and so could be safely repealed without replacement. In most cases that is because the instruments made amendments to existing law, and so the effect of those amendments is preserved by FSMA 2023. The next tranche, Tranche 3, of assimilated law to be reviewed will include: (i) AIFMD and the UCITS Directive; (ii) continuing with reforms of the PSRs and EMRs; (iii) EMIR, beginning with Titles III, IV and V relating to CCPs; and (v) MiFID, beginning with the MiFID Org Regs and the MiFIR provisions relating to transaction reporting. Due to the significance and size of some of these files, the government intends to adopt a multi-staged approach to reviewing and replacing them. HMT will also review the 2019 and the 2020 Equivalence Determinations Regulations in order to restate necessary provisions and ensure that onshored equivalence decisions are in scope of the new Deference Accountability Mechanism in FSMA 2023. The government will communicate its approach to the remaining assimilated law and any further tranches in due course.

Policy paper

Sustainable finance

Council proposes compromise text for Corporate Sustainability Due Diligence Directive

On 15 March, the Council of the EU proposed a compromise text of the Corporate Sustainability Due Diligence Directive (CSDDD) to the EP. The Council failed to formally endorse the previous provisional political agreement that was reached in December last year. Revisions to the text include: (i) a reduction in scope, with less companies required to comply; (ii) the lower thresholds for companies in high-risk sectors have been removed; (iii) the due diligence obligations have been expanded; (iv) directors are no longer subject to a duty of care and are no longer responsible for setting up and overseeing the due diligence obligations; and (v) the timelines for compliance have been extended – the majority will not need to comply until five years after the CSDDD enters into force. If the EP adopts the revised text, the Council has stated that it will also adopt it, allowing it to be published in the OJ. The revised CSDDD is on the EP plenary agenda for adoption on 24 April.

Council proposal

Other developments

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Act) 2024

On 20 March, the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) Act) 2024 received Royal Assent. The CPTPP is an Indo-Pacific free trade agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, Peru, New Zealand, Singapore and Vietnam. Financial services are covered by the agreement alongside numerous other areas. The government states that the UK is now in a position to join the CPTPP later this year, it will now seek to pass technical secondary legislation to ensure the UK is ready to ratify its accession to CPTPP. Other parties also have to complete their domestic processes to ratify UK accession (six being needed for the agreement to enter into force), with Japan and Singapore having already completed this.

Press release

CPTPP Act 2024

FCA consults on amendments to guidance for insolvency practitioners on how to approach regulated firms

On 19 March, the FCA began consulting on amendments to its guidance for insolvency practitioners (IPs) on how to approach regulated firms, in order to minimise disorderly failures. The proposed guidance is aimed at IPs appointed over firms solely authorised or registered by the FCA, with potential relevancy for IPs appointed over firms that are dual regulated by the FCA and PRA. The guidance, among other things, raises awareness of regulated firms’ regulatory obligations and the FCA’s expectations of IPs when taking appointments over a regulated firm. Proposed amendments to the guidance include: (i) to reflect the coming into force of the Payment and Electronic Money Institution Insolvency Regulations 2021; (ii) to set out expectations under the Consumer Duty; (iii) to reflect the Court of Appeal decision in Ipagoo; and (iv) to reflect the extension of FSCS protection to eligible customers of an EMI or PI. Additionally, the FCA are looking to identify aspects of the guidance where clarity could be improved, or further information provided. The deadline for comments is 30 April. The FCA intends to publish the finalised amended guidance later this year.

Consultation

PRA to launch new website for rulebook on 10 April

On 19 March, the PRA announced that it will be launching a new website for its rulebook on 10 April. The web address remains the same and all existing links will continue to function. The PRA has migrated all rulebook content and metadata to the new platform and begun adding PRA supervisory statements and statements of policy. This process is expected to be completed by year-end. Key changes to the rulebook website include: (i) ‘Related Links’ re-organised to provide easier access to policy statements, and guidance and other material; (ii) easier to use ‘time-travel’ function showing a visual timeline of the dates when a Part has changed; (iii) links better reflect the location of the webpage, for example by the use of Part names rather than internal reference numbers; (iv) the homepage provides links to current consultations; (v) an improved ‘What’s New’ page which provides information on the most recent changes to Rulebook content (including SS and SoP); and (vi) the ability to access on a rule-by-rule basis the legal instruments and PS that changed a rule.

Press release

FCA updates approaches to supervision, consumers, competition and international firms

On 19 March, the FCA published Handbook Administration (Supervision Manual) Amendments 2024. The instrument deletes SUP 1A, the FCA’s approach to supervision from the Handbook. The amendment comes into force immediately on 19 March. The FCA has also published new pages on its: (i) approach to international firms; (ii) approach to competition; (iii) approach to consumers; and (iv) approach to supervision. Each webpage is described as an update to the relevant previous approach document. Whilst the pages do not clarify what updates have been made, in relation to the approach to international firms at least, the FCA has confirmed to the Association of Foreign Banks that the updates are merely formatting changes or for ease of reading. For example, new headings and subheadings have been added, to make the text easier to scan for online readers, some headings have been amended to be more descriptive, to help them get picked up in search engines, and lists have been reformatted where possible to make it easier for firms to scan.